Citation Nr: 21007902 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-20 009A DATE: February 11, 2021 ORDER Payment for unauthorized expenses incurred for care received at Baylor University Medical Center from February 27, 2013 to March 4, 2013 is denied. FINDING OF FACT On February 23, 2013 the Veteran traveled to Baylor University Medical Center from his home and was admitted to the emergency department early the next morning, February 24, 2013. The nearest VA medical center with an emergency department, Dallas VA Medical Center, was roughly the same distance from the Veteran’s home as Baylor University Medical Center: a little over 80 miles away, or about an hour and twenty minutes driving. CONCLUSION OF LAW The criteria for payment for unauthorized expenses incurred for care at Baylor University Medical Center from February 27, 2013 to March 4, 2013 are not met. 38 U.S.C. §§ 1703, 1725, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the Army from November 1968 to November 1971. This case comes before the Board on appeal from an April 2013 decision of a VA Medical Center in Dallas, Texas. The Board remanded the case in May 2019 to seek records substantiating the appellant’s report that the appellant had attempted several times unsuccessfully to contact VA to request a transfer. The agency of original jurisdiction (AOJ) made and documented several requests for such records, but none were provided. See VA Memoranda dated July 2019, February 2020; Email Correspondence dated October 2019, February 2020. Originally on appeal was entitlement to payment or reimbursement for unauthorized medical expenses incurred on the dates February 24, 2013 to March 4, 2013. On remand, the AOJ granted entitlement to payment or reimbursement for medical expenses incurred on the dates February 24, 2013 to February 26, 2013, finding that a VA facility was not feasibly available. Therefore, only entitlement for the dates February 27, 2013 to March 4, 2013 remains on appeal before the Board. Entitlement to Payment or Reimbursement for Unauthorized Medical Expenses VA will pay for or reimburse the cost of unauthorized care at non-VA facilities for veterans who are enrolled in the VA health care system and have received VA care within the last twenty-four months and who are personally liable for non-VA emergency treatment costs, regardless of whether the treated condition is a service-connected condition or related thereto, under the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; (c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment; (g) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment; and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran’s liability to the provider; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. The appellant is seeking payment or reimbursement for unauthorized medical expenses incurred for treatment provided from February 27, 2013 to March 4, 2013, part of an episode of care extending from February 24, 2013 to March 4, 2013. Treatment records indicate that the Veteran presented at Baylor University Medical Center on February 23, 2013 with complaints of watery stools and weakness for the past three days, as well as a history of clostridium difficile two times in the past six months. See February 2013 Private Medical Record. The same records also indicate that the Veteran traveled to the hospital from his home. Baylor University Medical Center is located around 85 miles from the Veteran’s home address. Dallas VA Medical Center, the nearest VA Medical Center with an emergency department, is located around 81 miles from the Veteran’s home address. See November 2012 Application for Compensation; July 2013 Notification Letter (reflecting the Veteran’s address during the relevant period). In other words, a VA facility with an emergency department was almost precisely as close to the Veteran’s home as Baylor University Medical Center. Therefore, the Board finds that at the time the Veteran presented to Baylor University Medical Center, a VA facility was feasibly available and an attempt to use it beforehand would have been considered reasonable by a prudent layperson. The Board acknowledges the appellant’s contention that it attempted to contact VA to arrange a transfer of the Veteran on February 25, 27, and 28, 2013 and March 5, 2013. See June 2015 Appellant Statement. When a Veteran is treated for an emergency condition by a private provider and a VA or federal facility is not feasibly available, VA will pay or reimburse the costs of unauthorized medical expenses even after the emergency ends under the following conditions: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA or federal facility and the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA or federal facility (which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA or other Federal facility) and documented such contact in the veteran’s progress/physicians’ notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(b), (c). However, in this case the question of whether a transfer to a VA facility was requested and refused is not at play, since the Board finds that a VA facility was feasibly available at the outset of the episode of care. In other words, there is no basis for entitlement to payment or reimbursement for unauthorized medical expenses in the first place, and thus no entitlement to extend as the result of any unsuccessful transfer attempts. The Board recognizes that this finding conflicts with the finding of the AOJ on remand in granting entitlement to payment or reimbursement for unauthorized medical expenses for the period from February 24, 2013 to February 26, 2013. See May 2020 Supplementary Statement of the Case. However, the Board reviews the evidentiary record de novo, and is not bound by findings of fact made by the AOJ. See 38 C.F.R. § 20.300. Therefore, for purposes of entitlement to payment or reimbursement for unauthorized medical expenses incurred during the portion of the episode of care here on appeal (February 27, 2013 to March 4, 2013) the Board finds that a VA facility was feasibly available at the outset of the episode of care and an attempt to use it beforehand would have been considered reasonable by a prudent layperson, as noted above. Accordingly, entitlement to payment or reimbursement for unauthorized expenses incurred for care at Baylor University Medical Center from February 27, 2013 to March 4, 2013 is not warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.